(a) "Sale with Prospective Purchaser Identified but Bids Considered” Defined
A “sale with prospective purchaser identified but bids considered” is also known as a “sale with a stalking horse bidder,” and is a proposed sale to a specific entity for a set price, including a credit bid from a secured creditor, with competitive bids to be considered.
(b) Contents of Motion to Sell with Bid Procedures
A Motion to Sell to a prospective purchaser but with bids considered shall identify or include:
(1) the property to be sold;
(2) the amount of a claimed exemption in the property;
(3) the prospective purchaser ("Prospective Purchaser");
(4) the sales price and an estimate of the net proceeds to be received by the estate, including a deduction for any exemption;
(5) a brief summary of all material contingencies to the sale, together with a copy of the agreement, if available;
(6) if the proposed sale seeks to sell property free and clear of liens or other interests under 11 U.S.C. §363(f), the names of the lien or interest holders;
(7) the executory contracts and leases proposed to be assumed or rejected as part of the sale, if any;
(8) a description of the manner in which the property was marketed for sale, and a description of other purchase offers;
(9) a description of any relationship between the Prospective Purchaser and its insiders and the Debtor and its insiders or the trustee;
(10) a statement setting forth any relationship or connection the trustee or the Debtor or its insiders will have with the Prospective Purchaser after the consummation of the sale;
(11) if a fee is proposed to be paid to the Prospective Purchaser and another bidder prevails at the sale, a statement of the conditions under which the fee would be payable and the factual basis on which the seller determined the provision is reasonable;
(12) the identities of any other entity that expressed to the movant an interest in the purchase of all or a material portion of the assets to be sold within 90 days prior to the filing of the sale motion, the offers made by them, if any, and the nature of the offer;
(13) the bid procedures proposed for the sale;
(14) a disclosure if the property to be sold contains personally identifiable information and, if so, the measures that will be taken to comply with 11 U.S.C. §363(b)(1); and
(15) if the case is pending under Chapter 11, and proposes the sale of all or substantially all of the Debtor's assets, the following:
(A) if schedules have not been filed by the Debtor, a summary of the Debtor's debt structure, including the amount of the Debtor's secured debt, priority claims, and general unsecured claims; and
(B) if a creditors' committee, or its equivalent, existed pre-petition, the identity of the members of the committee and the companies with which they are affiliated and the identity of any counsel.
(c) Notice of Motion to Sell and to Approve Bid Procedures
The movant shall prepare, for Court review, a notice of the Motion to Sell and of the proposed bid procedures that contains the information required by subparagraph (b) of this rule. The movant shall provide a 21-day Objection Notice of the Motion to Sell or the Court may instead direct the issuance of a hearing notice and will provide the movant with a hearing date and time and any objection deadline that shall be included in the notice. Upon distribution of the notice, the movant shall file a Certificate of Service.
(d) Order Establishing Bid Procedures and Notice of Sale Hearing
Upon expiration of the objection period or upon conclusion of a hearing on the proposed bid procedures, the movant shall provide the Court with an Order Establishing Bid Procedures and Notice of Sale Hearing. The order shall include the bid procedures; the date, time, and place where bids will be considered; the date, time, and place of the hearing to approve the sale; and any deadline by which parties shall object to the proposed sale. Upon entry of the order, the movant shall make distribution and shall also file a Certificate of Service.
(e) Order Approving Sale
(1) Sale to Prospective Purchaser
If the Prospective Purchaser prevails at the sale, then the Court shall enter an order approving that sale.
(2) Sale to Different Entity: No Change in Terms Except Price
If a sale under this rule results in a sale to a party other than the identified Prospective Purchaser, with no change in terms other than the purchase price, then at the hearing on approval of the sale the movant shall identify the successful purchaser and the change in price, and shall make a request for approval of a fee to the Prospective Purchaser if one was disclosed in the Motion to Sell. The Court shall enter an order approving that sale.
(3) Sale to Different Entity with Change in Terms
If a sale under this rule results in a sale to a party other than the identified Prospective Purchaser, and the terms of that sale other than price have changed, including but not limited to the proposed assumption or rejection of leases and contracts, the movant shall identify the successful purchaser and the change in terms and shall make a request for approval of a fee if one was disclosed in the Motion to Sell. The Court shall consider whether the change in terms requires additional notice to parties who may be affected by those changes. If no additional notice is required, the Court shall enter an order approving the sale. If additional notice is required, the Court shall enter the order approving the sale only after such additional notice period.
(f) Report of Sale
The movant shall file a report of sale under Fed.R.Bankr.P. 6004(f)(1) within 14 days of the later of the completion of a sale under this rule or the last scheduled sale date, should the transaction fail to close.